Should Single-Member Districting Be
Held Unconstitutional?If So, That Ruling Would Help Solve The Problem
of Political GerrymanderingBy GUY-URIEL CHARLES

Thursday, Feb. 05, 2004

In single-member districting, a district's voting yields only a
single representative to Congress. In multi-member districting, however,
a district's voting yields multiple representatives to Congress.

As I will explain in this column, for a number of reasons,
single-member districting is far less democratic than multi-member
districting. It further entrenches already-entrenched incumbents, and
effectively disenfranchises minorities voting within a given district.

But unless the Supreme Court steps in, the single-member districting
process will doubtless continue. After all, why would the very
incumbents whom single-member districting favors, vote to abolish the
practice?

In 1962, in Baker
v. Carr, the Supreme Court courageously announced the principle
of one-person one-vote -- which defeated certain kinds of political
manipulation by ensuring that Congressional districts had to be equal in
population. Baker was radical and controversial at the time it
was decided. But now, everyone agrees that the Court was right to
intervene.

It's high time for the Court to hand down a new Baker: One
that takes aim at the pernicious practice of single-member districting.
Single-member districting not only infringes on the basic right to vote,
it also infringes on the right of free political association.

How Political Gerrymandering Undermines Voting and Association Rights

As a
recent column by Edward Lazarus discussed in detail, politicians are
becoming ever more adept at manipulating district boundaries to favor
the outcome they desire. Yet permitting the representatives to choose
the represented, and not the other way around, inverts the very concept
of democracy.

Political gerrymandering has given incumbents an advantage -- often,
an unbeatable one. As a result, elections have become less meaningful.

Few seats in the House of Representatives and in state legislatures
are now truly up for a fair contest by a serious challenger. Many
representatives are so certain to be re-elected -- particularly thanks
to political gerrymandering -- that they might as well be the monarchs
of their districts.

Because they need not worry about re-election, these representatives
need not worry about being accountable to voters' beliefs and
preferences. And voters who form a minority within the district are
especially susceptible to being ignored: Why should a politician listen
to those who both vote against him, and have no chance of unseating him?

Instead of acquiring political power by convincing voters of the
wisdom of their legislative agenda -- and making compromises to appeal
to minority constituents -- political parties are simply attempting to
solidify their power by engaging in imaginative and ingenious line
drawing. Because the nation is so sharply divided, and because so few
seats are contestable, the benefits of creative line-drawing--four or
five districts here and there--generate tremendous payoffs.

Consequently, the national political parties have taken greater
interest in the redistricting process. Districting has become a tool
that the parties use to increase their strengths and carry out their
policies in the United States House of Representatives.

Less time is spent on listening to, and wooing, constituents; more is
spent on redistricting to make sure voting outcomes are preordained.
Voting rights are harmed -- and, for some voters, decimated.

Suppose, for example, that the state wants to draw a district that
will elect a Democrat. It will create a district where the majority of
voters are Democrats. The state will not create a district that is 100%
Democratic because that will waste Democratic votes. So, the state would
put Republicans in that district instead precisely so that their
votes are wasted.

In theory, a State that was 60/40 Democratic could disenfranchise all
the Republicans by creating numerous 60/40 Democratic districts. If this
were done, it would be, in effect, as if the States' Republicans had
lost the right to vote.

How Political Gerrymandering Violates the Right to Political
Association

This kind of aggressive redistricting violates not only the
constitutional right to vote, but also the constitutional right of
political association. Under the First Amendment, individuals have the
right to associate with like-minded others, in the service of political
causes. But redistricting that is designed to split up
otherwise-powerful groups, and reduce them to powerlessness, defeats
that right of association.

What if the Republicans who are a minority in one district want to
team up with other Republicans in another district so that they can
elect a Republican representative? The answer political gerrymandering
gives is: Too bad. Since the state had already decided to place the
Republicans in separate districts, they are forced to be separate.

Of course, any scheme districting will always naturally separate
certain people who would like to associate; Republicans who live at
opposite ends of a state are out of luck if they'd prefer to share a
district. But my point is that political gerrymandering intentionally
tries to destroy the right of association, by breaking up naturally
associated persons to make it harder for them to organize, and elect
representatives with views akin to their own.

For its own purpose, the government forces certain associations, and
discourages others. Republicans -- or, in other Districts, Democrats --
who know they will be perpetual losers, may not even bother to associate
politically at all. And their discouragement will be a predictable
result of intentional state action motivated to separate them
politically from like-minded individuals.

Voters of color, in particular, have suffered from political
gerrymandering. The Court has increasingly frowned on the primary device
for giving effect to their electoral preferences: the creation of
majority-minority districts -- seeing this device, wrongly, as a form of
racial discrimination.

In part because of the Court's disapproval, states have drawn many
fewer majority-minority districts in the post-2000 redistricting round
than in the previous decade. As a consequence, voters of color have
suffered a loss in representational opportunity.

How Multi-Member Districting Can Undercut Political Gerrymandering

That's all bad news, of course -- and the worst of it is, none of
this is bound to improve anytime soon, unless the Supreme Court
intervenes. Plainly, it is not going to change its mind to bless
majority-minority districts. But there is something the Court can
do to improve the situation.

Single-member districts are especially susceptible to political
gerrymandering -- and thus especially damaging to the basic
constitutional rights to vote, and to political association. Conversely,
multi-member districts with cumulative voting can vindicate these rights
to a much greater extent.

Imagine, again, our 60-40 Democratic state. And imagine, once again,
that it's cut up into numerous 60-40 Democratic districts. But now
imagine that each district elects three members. And also imagine that
voting is cumulative each voter would get three votes and they can plump
all their votes for one candidate. As long as Republicans vote along
party lines, prefer the same Republican candidate, and all vote for that
candidate, cumulative voting would guarantee them as least one seat.

Suddenly, no one can ignore the Republicans anymore. They are likely
to elect at least one representative in each district, if they unite.
And if they build alliances with Democrats, they may have even greater
control. Whereas in the past, it seemed the Republicans were entirely
powerless, now their power has been significantly revived.

Supreme Court Intervention Is the Only Solution

Our society is too heterogeneous and we have too many cross-cutting
political identities to tolerate political gerrymandering in its present
form. Yet politicians will never, on their own, be able to resist the
temptation to manipulate the lines for their own benefits -- any more
than they could restrain themselves from creating districts that
violated the one person-one vote principle before Baker v. Carr.

The Supreme Court not only should, but must intervene. Striking down
single-member districts will not eliminate political manipulation
entirely. But it will go a long way toward reducing the damage
done by this incumbent-protection device. Thus, the Supreme Court should
rule that single-member districts are unconstitutional.

This piece was published in Findlaw's Writ -- its
legal commentary series.

Guy-Uriel Charles is an Associate Professor of Law at
the University of Minnesota Law School and a Senior Fellow in Law and
Politics at the Institute on Race and Poverty. He teaches and writes in
the areas of constitutional law, voting rights, election law, and law,
politics, and race.